Z
The Legal Monthly
Vol. 2 No. 6 Read Z the Blog at http://zlegaltimes.blogspot.com/ July 2007
The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information
ContentsFrom Z Editor
Quarterman v. Nelson
Habeas Corpus
Scooter Sentenced, Appeals
Genarlow Sentence Vacated
Nifong on Trial
Thunderhorse, et. al. vs. Owens, et. al waiting Certification
Registry, Restrictions and Recidivism
Amicus from Ohio: restrictions
Bloodsworth's Case
Subpoenas issued in Justice Investigation over Firing
Sex Makeover
Still in Hot Water: Race to the Bottom or, Will the Frog Ever Jump?
Z Corner Office
All too soon it is that time of the month, to perform the ritual and, as always, there is way too much to say and too little space in which to say it. You will notice June's issue is skipped but the numerical ordering is flawless, of course. Because of some feedback in which I learned that some of Z's letters are not reaching you for up to two weeks I've decided to advance the month so the paper does not appear perennially late. There's precedent for this: I just received my July/August Atlantic Monthly. I guess they actually take off a whole month and pick up in September, writing in August fresh from Cape Cod vacations (or wherever Yankee Liberal establishment types go). Speaking of which, Senator Hilary is definitely going to be our next president and Edwards, VP.
Even Republicans are concurring. They've already thrown GWB over the side and there's no turning back. Romney, Thompson and the rest don't have a chance. Nope, you heard it first here. All because of our misadventure in Iraq and stupidity. It's Humpty Dumpty all over again, shattered and can't be fixed. Egg on face, scrambled, FUBAR, etc. Do call in the Snipers: History Channel has an awesome special.
Global Warming, Immigration, Trade, Prison and ReEntry issues are heating up the atmosphere, in which CO2 is a big culprit, and it's not just coming from talking heads.
Gasoline prices have never been higher.
The final report on the problems with the HPD Crime Lab and what needs to be done about it has been released. (Talk about the letting the Wolf tend to the Sheep; I'm not speaking of Bromwich of course, but of powers-that-be in Houston--read on):
Independent investigator Michael Bromwich outlined a series of steps officials should take to determine what role blood-typing and DNA evidence played in securing convictions against as many as 600 defend-ants including 14 already executed, whose cases were processed at the Houston Police Department's crime lab between 1980 and 2002. Police Chief Harold Hurtt, Mayor Bill White and Harris County District Attorney Chuck Rosenthal agreed that hundreds of cases will require further scrutiny and possibly new testing, but they rejected Bromwich's suggestion that a "special master" be appointed to oversee the process.
The $5.3 million investigation of the lab, where bad management, undertrained staff and inaccurate work -- first exposed 4 1/2 years ago -- has cast doubt on thousands of convictions and unsettled the criminal justice system in Houston and beyond. In the absence of a "special master," the committee of community representatives that oversaw Bromwich's investigation, known as the stakeholder committee, will check on progress. The committee's presence, coupled with assistance from nonprofits such as the Innocence Project to represent defendants' interests, eliminates the need for an independent supervisor of the serology review, Hurtt said. Barry Scheck, a founder of the Innocence Project, said his group will help but that a special master would be more effective. However well-motivated HPD and the District Attorney's office may be, the Chron editorial puts it well:
Local officials understandably want to put the crime lab scandal behind them now that all the lab's divisions have been certified as satisfactory and are processing evidence. However, hundreds of convicts remain in prison, some more than a decade after trials in which evidence presented might have been erroneously tested. Many no longer are represented by lawyers and will need more assistance than a small advocacy group such as the Innocence Project, with limited resources, can swiftly provide. ZNB: Nice try guys, but the blame ought not fall only upon DNA sampling. Think: it is outrageous miscarriage of justice that the DNA is all going the wrong way? Nope. Did it ever exonerate the wrong guy? Of course it did. Every time. The innocent got convicted only when the guilty went free. That this could happen continuously for years means that the DNA guys were just dupes, following in the footsteps of the real culprits, lazy incompetent police and indifferent lawyering by City, County and State prosecutors. Policy at the top set the tone for this.
Hurtt says the judicial system, including police, prosecutors, judge and jury, can bring justice to the inmates who might have been wrongly convicted. That would leave the matter of representing prisoner interests to the police department that made the case against them, the district attorney's office that prosecuted them or a small private group. That model does not guarantee impartial justice.
It's not that it's impossible for this to work without there being an outsider in charge, as the example of Dallas DA Craig Watkins shows. Watkins is basically an outsider, just one who has since gotten himself officially embedded. He has a mandate for what he's doing that neither Rosenthal nor Hurtt have. Let a special master get this done. It really is the best way. [Grits has more and more on this. The final report itself is available here (PDF).]
Off the Kuff: April 18.
Lisa Falkenberg, one half of a duo filling in for Rick Casey while he's off doing whatever it is that he's doing right now has a comparison of how Dallas County DA Craig Watkins and Harris County DA Chuck Rosenthal deal with claims of innocence. The ending sums it up nicely:
How can it be ethical to acknowledge the possible incarceration of innocent people and then do little to find and free them?
I admire Rosenthal's compassion for victims; he says he decided long ago that if alleged rape victims braved stigma to come forward, he would stand by them until evidence proved otherwise. Why not the same compassion for victims of incompetent counsel and mistaken eyewitnesses? Rosenthal should follow Watkins' example in Dallas: Throw open his doors to the innocence attorneys and allow them to test whatever evidence exists in disputed cases. He has nothing to lose, except his pride, but much to gain. For every innocent person in prison, there is a murderer or rapist who escaped justice.
Kuff says, “Couldn't have said it better myself. Watkins has the benefit of a save everything policy that has aided the efforts of those who seek to overturn past convictions, but there's no reason Rosenthal can't institute a similar policy, if such a thing were to interest him. Needless to say, I wouldn't count on that happening.” and, Feb 21:
I loved this profile of new Dallas County District Attorney Craig Watkins that ran in yesterday's Chron. It's truly refreshing to see a DA who's more interested in getting it right than in racking up statistics. When DNA evidence exonerated James Waller last month, freeing him from the crushing and false accusation that he raped a 12-year-old boy in 1982, newly installed District Atty Craig Watkins was in the courtroom to express his regret. "When you send someone to prison for something they didn't do, you go down there and apologize, and you don't let it happen again. I don't want to be apologizing 20 years from now," Watkins said in an interview last week. [Prior DA Henry] Wade prided himself on a high conviction rate and stiff sentences, but along with the office's hard-nosed reputation came accusations of a win-at-any-cost attitude and a history of wrongful convictions that shadows it to this day. In addition to Waller, 11 others have been exonerated since 2001 through new DNA testing, more than in any other U.S. county. Nine of those date to Wade's administration. "I'm not part of that failed system," said Watkins, who twice tried for a job in the office. "I'm fresh. I have nothing to protect."
Here's the thing: Truly being "tuff on crime" necessarily implies a strong commitment to take injustices, both past and future, seriously. Every time the system, through neglect, incompetence, disregard for due process, or just plain bad luck, locks up a James Waller, it's not just putting an innocent person in prison. It's leaving a guilty person on the streets to keep doing what he or she has been doing. Every James Waller represents a tolerance for and an indifference to the crimes that will be committed and the people that will be victimized by the person who should have been punished but wasn't. Fighting to keep a James Waller in prison in the face of real excuplatory evidence for whatever the reason isn't being tuff on crime, it's being myopic and pigheaded about it. Watkins doesn't just get this, he knows how to communicate it:
In his first weeks on the job, he has worked to assure a skeptical public that his new approach does not mean he is soft on crime in the nation's most crime-plagued major city. Watkins said he is seeking the death penalty in the retrial of Thomas Miller-El, a case that shed light on the office's one-time practice of excluding minorities from juries.
Miller-El was sentenced in 1986 to die for the robbery and murder of an unarmed Irving motel clerk, but the U.S. Supreme Court overturned the conviction in 2003 because the jury selection was "suffused with bias."
"This person who killed two people heinously, who should have been dealt with a long time ago, he's getting a break because those prior administrations didn't see fit to do it right," Watkins said as he leaned over his desk in a spare office, its walls filled with bare spots and empty picture hooks. "We're going to do it right." Hey, this Watkins guys must be pretty smart.
Habeas Corpus
Although the very point of habeas corpus is to review the facts, literally “produce the body” in Latin, this is no longer true. Federal habeas has become a paper chase, a game of how law clerks dream up ways to dismiss without actually getting to the substance (facts tending to show the conviction is infirm) of the claim, a game which all good lawyers play regardless of the kind of case whether civil or criminal. That is why it is called “civil procedure” and “criminal procedure”. The only difference is that some states courts would reach the substance sooner, but because of the removal of teeth from federal habeas the states have become increasingly reluctant to take a serious cut, knowing their decisions will be deferred to in nearly every instance. Here is the ace, taken from an earlier Z blog post:
The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonzales and the senators. Although everyone -- including, apparently, the attorney general -- agrees the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo. Gonzales responded by suggesting the Constitution does not protect habeas corpus at all.
"The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said. [nb. Boy, talk about offering a mile and taking an inch...] "Now, wait a minute," Specter interrupted. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus?" (excellent point: you can't take away what you never had, or ... maybe, if anybody can, the “top cop” would figure out a way to do that).
Lawyers delicately tried to explain what the attorney general meant. "This didn't come out as cleanly and crisply as we might have hoped," said one, who spoke on the condition that he not be identified. "The question is not whether Americans have a right to habeas corpus. That is undisputed. What's at issue is the scope of the right."
Mushy shit, this business about habeas & scope. Yes, even federal judges can get it wrong: Observe for yourself, U.S. V Allen, (10th Cir. May 31, 2007) (No. 06-6111) here, how easy it is to make unreasonable decisions in cases involving uncharged (sex) offenses. It seems, the very thought of a sex crime drives otherwise rational individuals to extremes of irrationality, if not unreasonableness (oooh nooo, not that). Equally interesting is the interaction between uncharged, conduct unrelated to the offense and sentencing.
Quarterman v. Nelson (docket 06-1254). The fililngs in the case are linked in this post.
The Court, according to its docket, considered the case at its Conference on Thursday (June 14), and thus could issue an order on it as soon as Monday. Since 2002, Nelson's lawyers have been pursuing a federal habeas challenge, with emphasis on his claim that the jury in his case did not have a chance to fully weigh defense evidence of a mental disorder, abusive childhood and substance abuse history. The claim relies primarily upon an intepretation of the Supreme Court's 1989 ruling in Penry v. Lynaugh, and the Court's later discussions of the scope of the Penry ruling. The Fifth Circuit, in its en banc ruling in December, read those precedents in Nelson's favor, nullifying his death sentence. The Circuit Court majority concluded: "At the time that Nelson's conviction became final, the Supreme Court had clearly established that the relevant inquiry is whether there was a reasonable likelihood that the jury would interpret the Texas special issues in a manner that precluded it from fully considering and giving full effect to all of the defendant's mitigating evidence."
Scooter Sentenced, Appeals
Will report for 30 month sentence at BOP.
Genarlow Sentence Vacated
But not released pending state's appeal.
Nifong on Trial Interesting to watch prosecutors making the arguments against the former prosecuting atty in special Saturday session today (June 16), the one who brought the Duke “rape case.” Rare to see one of their own prosecuted. That said, they did a nice job concerning inflammatory statements about “the accused”. Another issue was the withholding of the exculpatory DNA tests. Justice has two faces: one that gets you and one that saves you. Unfortunately, the one that gets you is a whole heckuvalot bigger and badder than the other. Will this never change? I am hopeful that the thumb should be released from the weights on the side of the scales of death, and can't help feeling satisfaction from Nifong's overreaching brought to justice. If the defendants had not been wealthy he would probably never have been caught. Sad, isn't it? Perhaps, prosecutors will be more careful in the future. A lot of damage has already been done to the credibility of “the system” and it isn't getting any better.
Waiting Certification of Class
According to the update of 23 March 07 the class has not yet been certified. Not everybody will have a claim in this action, however, it bears watching. All persons eligible for parole are potentially affected. Here is a letter from a former inmate that can be found on the website of Atty Norm Sirak, “Fixtexasparole.com”, who filed the case:
All people make mistakes. No one is exempt from error in their lives. When a bad choice takes place in one’s life, consequences soon follow. Unfortunately, some mistakes are illegal and the judicial system has a duty to invoke punishment so that a debt to society is paid.
When I committed my illegal mistake, consequences followed. At sentencing, my judge boldly stated that I would do six flat years. Twelve flat years later; four set-offs; four parole attorney’s, and $12,000.00 in the red for litigation fees it became blatantly apparent that being a model inmate, with two college degrees and high dollar lawyers, was not the formula the Texas parole board was seeking for a rehabilitated offender. I was slapped in the face with the hand of reality that in the eyes of the parole board, there was no winning formula for being a rehabilitated inmate in Texas. In fact, rehabilitation didn’t matter at all. My judge wrote letters (plural) recommending my release. Those letters fell on deaf ears at the parole board. The Texas parole board had taken the liberty to transition themselves into my “new” judge, jury, and sentencing team.
My true sentencing judge, my trier of fact, said I would do 6 flat years. But, the parole board flagged my file, determining that I would do 20 flat years. Luckily, a legislator found this out; but, would not come forth because it would cause too many waves in political arenas.
There were things in my parole file that were incorrect. But, no one in administration would take the time to verify the facts and correct the errors. Writs of habeas were filed and dismissed. All of my set-offs were for the nature of offense and criminal histor, two denial reasons that I couldn’t change or improve upon. My hope diminished as each year passed me by. My children became adults and my parents aged rapidly from worry. As for me, my debt to society was working in overtime mode and my payment was no where to be seen.
For prisoners, there is very little hope in a captive environment. However, when I read the offender funded Complaint filed by Attorney Norman Sirak, hope swelled like a beacon in the night. This class action lawsuit addresses the multi-faceted issues of parole board abuse. Some of the issues raised are: 1) good time and work credits, 2) the modification and alteration of trial court findings in a prejudicial manner, 3) involuntary servitude, 4) due process violations, and 5) ex post facto claims. Finally, someone has gotten their arms around the illegalities of the Texax Parole Board’s mode of operation. And, finally, someone is willing to take these issues head on. Thank you, Attorney Sirak!
(The offender funded class action lawsuit was filed on December 5, 2005, in the U.S. District Court, Western Division, in Austin, TX. The case is captioned, “Thunderhorse, et. al. vs. Owens, et. al.”. The case number is: A05CA1009SS. The Judge is the Honorable Samuel Sparks.)
Registry, Restrictions and Recidivism: Visions from the Old School Archipeligo Pennsylvania is considering "Robin's Law" for persons convicted of a crime of domestic violence. The trend of naming a law based upon an unusual crime victim continues. Professor Berman tentatively supports the idea based upon the success of sex offender registries in aiding law enforcement. I've always been a bit torn about registries. I think registries as a law enforcement tool are an entirely sensible idea. However, I think community notification provisions and universal access to registries has really created some significant negative effects for these laws. And as states consider creating registries for other crimes, I think it is important to remember that the private effects of notifying the public about every registered crime are significant. Convicts struggle to reintegrate into communities due to vigilantes, difficulty gaining employment, and problems with stable housing. Notification tends to exacerbate these difficulties. So while I think registries are generally a good idea for law enforcement (and limited private uses), the community notification provisions that necessarily follow tend to increase the drawbacks to these laws. Jun7. Sex Crimes blog.
Amicus from Ohio: restrictions
This link to an amicus brief that was sent to the Ohio Supreme Court. Here is a portion of the brief discussing the way in which the statute may increase recidivism:
Additionally, the Ohio statute may increase the risk of recidivism by forcing many sex offenders to move from supportive environments that reduce the offenders' risk of re-offending. See, e.g., JOAN PETERSILIA, WHEN PRISONERS COME HOME: PAROLE AND PRISONER REENTRY (2003) (concluding that positive social support is critical to the success of released offenders.). In Mr. Porter's case, he and his wife lived in their home for fourteen years. Mr. Porter lived with his family and was well established in his community. In forcing Mr. Porter to vacate his residence, the State requires him to leave much more than the physical location where he lives, it asks him to leave the support network and potentially his source of services. Such phenomenon is seen throughout the country as sex offenders are required to leave their homes in the face of residence restrictions.
Ohio has been a key battleground state in the courts concerning residency restrictions. The lower-level appellate courts have entered several opinions about the legality and constitutionality of residency restrictions. We should all be very interested to see how this Ohio Supreme Court case turns out. SL&P blog
Kirk Bloodsworth's case was the first capital conviction in the United States to be overturned as a result of DNA testing. Kirk, a former Marine and crab fisherman with no criminal record, was convicted of the rape and murder of a nine-year-old girl and sentenced to death in Maryland in 1984. In 1993, after years of fighting for a DNA test, state and federal labs concluded that Kirk's DNA did not match any of the evidence from the crime scene. By the time of his release, Kirk had spent nearly nine years in prison, including two on death row. Today, as a Program Officer for The Justice Project, Kirk travels the country telling his story, which serves as a powerful illustration of the systemic failures within the criminal justice system that can and do lead to wrongful convictions of innocent people.
John F. Terzano, President of The Justice Project, facilitates national and state criminal justice reform by fostering a dialogue among policymakers, practitioners, legal organizations, local law enforcement agencies and others around recommendations that will enhance the fairness and accuracy of our nation’s criminal justice systems. John has worked on issues of social justice for more than twenty-five years both here and abroad. The dramatic story of Kirk’s 20-year journey is chronicled in the best-selling book “Bloodsworth: The True Story of the First Death Row Inmate Exonerated by DNA” written by attorney Tim Junkin, who will be appearing along with Kirk and John. A book signing will also take place following the event. Additional background materials on Kirk’s case can be found on the Justice Project website.
SEX MAKEOVER
AT least since Ovid, sex has been the theme music in much of Western literature, played at variable volume in all its many keys: sex as fate, as fun, as tedium and emotional torture, as stand-in for religious devotion and, until not that many decades ago, as the fastest way in fiction to lose honor, home and head. Lately, though, it seems that a slight virginal breeze has been blowing through the worlds of publishing, theater and Hollywood. Poet Philip Larkin (“Annus Mirabilis”) established sarcastically: Sexual intercourse began / In nineteen sixty-three / (Which was rather late for me) / Between the end of the Chatterley ban / And the Beatles’ first LP. There is a sense that these recent artistic creations are partly a response, maybe partly unconscious, to the current state of sex in our society, where it can often feel like just another form of the cheap entertainment and distraction that now pushes in from all sides. That impression is fed by proliferating cable channels and the Internet, where the leak of the latest celebrity sex video already seems like a weary ritual, not more much momentous than the latest short-lived reality series.
sociologist Alan Wolfe, who has conducted hundreds of interviews over the last two decades for books about the country’s beliefs and politics, said he saw a reflection in such works of the way people seem to struggle now for a greater sense of societal structure. “They do want to go back to a more conventional sexuality, morality, whatever,” said Mr. Wolfe, director of the Boisi Center for Religion and American Public Life at Boston College. “But they do not want to go back to an era of repression. So a kind of muddled, middle position is where it seems to me that most Americans are these days.” NYT
Still in Hot Water: Race to the Bottom or, Will the Frog Ever Jump? [White Collar Crime Blog] The "no confidence" motion on Attorney General Alberto Gonzales may have just whetted the appetite to pursue the investigation of the firing of nine U.S. Attorneys in 2006. The House and Senate Judiciary Committee chairmen launched subpoenas to two former senior aides to President Bush, former Counsel to the President Harriet Miers (here) and former Director of Political Affairs Sara Taylor (here), to discuss their roles in the decision. The subpoenas are for documents and testimony, and the White House also received a document subpoena. Taylor is supposed to appear before the Senate Committee on July 11, and Miers before the House Subcommittee on Commercial and Administrative Law on July 12 -- each Committee gets its moment in the spotlight, apparently. Bush aide Karl Rove has not been subpoenaed, but that too may be in the offing. A letter from White House Counsel Fred Fielding warned the Committees again that sending subpoenas would not be a welcome development. His letter (here) concludes, "[I]t is our strong hope that the Committees will not feel compelled to elevate the stakes by pursuing the path of subpoenas and compulsory process referrer to in your recent letters, which will only prolong this debate . . . ." Senate Committee Chairman Patrick Leahy wrote back to Fielding in a cover letter to the document subpoena (here) stating: The White House cannot have it both ways -- it cannot withhold documents and witnesses and thereby stonewall the investigation and, at the same time, claim that the facts about the White House’s improper influence over federal law enforcement have not been revealed in detail. The White House’s continued stonewalling leads to the obvious conclusion that the White House is hiding the truth because there is something to hide. Because the White House has continued its refusal to provide the requested information to the Senate Judiciary Committee on a voluntary basis, I am issuing subpoenas." That sounds like the gauntlet being thrown down by Congress. Former interim U.S. Attorney Bradley J. Scholzman, who took the place of the ninth fired U.S. Attorney, Todd Graves, in the Western District of Missouri, sent a letter (here) to the Senate Judiciary Committee clarifying a misstatement in his recent testimony. Scholzman testified about the prosecution of four members of a liberal voter registration organization called ACORN that was filed right before the 2006 election, and said that he had been "directed" to file the case by an career official in the Elections Crime Branch of the Department of Justice's Public Integrity Section. In his letter, Scholzman writes, "I want to be clear that, while I relied on the consultation with, and suggestions of, the Elections Crime Branch in bringing the indictments when I did, I take full responsibility for the decision to move forward with the prosecutions related to ACORN when I was the interim U.S. Attorney." Yet another Emily Litella moment in the U.S. Attorney imbroglio.
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As always your comments are important to me, are encouraged, and will be published in my discretion. Keep them coming! I welcome any and all special interest “scoops” and stories--confidentiality is assured. My pub is not “legal advice” -- it is strictly informative and, hopefully, entertaining. Your subscription dues are even more important to me (just kidding! But it's true). I need $$$ in order to keep reaching out, especially to the indigent guys who really can't even afford a stamp—and if I really start to rake in the cash I can actually start doing stuff that real innocence projects do, filing motions and requests in court, and investigating cases. The Innocence Project continues actively seeking funding and partnerships, volunteers, and individuals to serve on the Board of Directors -- IRS 501(c)(3) exemption registration are imminently in progress. Please send your contribution today.
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